The employee has appealed from the compensation judge’s conclusion that her injury did not arise out of her employment.  We reverse.  The self-insured employer has cross-appealed the compensation judge’s conclusion that the employee was in the course of her employment when injured.  We affirm.

Josephine Hohlt began working as a painter for the University of Minnesota in 2006 and continued to be employed in that position in December 2013.  The employee did both exterior and interior painting throughout the Twin Cities campus.  Ms. Hohlt lives in Emerald, Wisconsin, about 60 miles from the campus and commutes to her job in her personal car.  On December 30, 2013, she parked at the Oak Street Ramp, a facility that is owned and operated by the university and is a parking facility that provides a special “contractor rate” available to university employees.  The Oak Street Ramp is also open to the public.  The ramp is less than three blocks from the Mayo Building where the employee was working.  (Resp. Exh. 5.)

On December 30, 2013, Ms. Hohlt was scheduled to work from 3:00 p.m. to 11:30 p.m.  She and her coworkers finished their assigned work around 10:30 p.m. and “punched out” at that time in the Mayo Building.  She and her coworkers then proceeded to the Oak Street Ramp, walking east on the sidewalk adjacent to Delaware Street SE toward the ramp.  The employee’s walk to the ramp was entirely on the University campus premises.

It had been snowing and sleeting that day and the employee testified that the sidewalks were slippery.  While Delaware Street SE is owned and maintained by the city of Minneapolis, the University of Minnesota is responsible for maintaining the sidewalk adjacent to Delaware Street.  Larry Thompson, the Environmental Health, Safety and Risk Manager for the Twin Cities campus, provided an exhibit which showed there had been five previous incidents in which employees had slipped and fallen on snow and ice in December 2013; two of those incidents had resulted in injuries with time lost from work.  There had been two instances in the previous two weeks in which employees had fallen on snowy and icy sidewalks.

When Ms. Hohlt and her coworkers reached the intersection of Delaware Street and Oak Street SE, they stopped on the sidewalk and waited for the traffic light to change so they could cross the street to the ramp.  As the sidewalk approaches Oak Street, it inclines down to the level of the street so there is no curb, providing easier access for ability-impaired pedestrians.  As the employee stepped on to this incline of the sidewalk, she slipped on the ice and snow and fell.^[1]

When she fell, the employee landed on her right side and fractured the femur neck of her right hip.  Open reduction surgery with fixation was performed but was unsuccessful.  Ultimately, a right total arthroplasty was done on October 6, 2014.  Ms. Hohlt was released to return to work without restrictions as of December 12, 2014, and returned to her regular employment with the university.

The employer denied primary liability for the slip and fall injury.  The employee filed a claim petition which was heard by Compensation Judge James Cannon on March 5, 2015.  At the hearing, the parties stipulated that the employee’s medical care related to the injury was reasonable and necessary and also stipulated that the employee had been temporarily totally disabled from her injury from December 31, 2013, to December 11, 2014.  The issues for determination by the compensation judge were whether the employee’s injury arose out of her employment and in the course of her employment.

The compensation judge accepted the employer’s argument that the employee’s injury did not arise out of her employment based on Dykhoff v. Xcel Energy, 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013).  The employee has appealed this conclusion.  The compensation judge also concluded that the employee was in the course of her employment when she was injured.  The employer has cross-appealed this conclusion.

There is no dispute or conflict in the evidence as to the material facts related to the issues on appeal.  The issues for this court are whether, on the basis of the undisputed evidence, the employee’s injury arose out of and in the course of her employment with the University of Minnesota.  This court’s review of a compensation judge’s decision based on undisputed facts presents solely questions of law which we consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993); Karstad v. Myles Lorentz, Inc., No. WC14-5775 (W.C.C.A. May 20, 2015).

To be compensable under the workers’ compensation statute, a personal injury must arise out of the employment and the employee must be in the course of employment at the time of the injury.  Minn. Stat. § 176.021, subd. 1.  Both “arising out of” and “course of employment” are at issue in the present case.  “The very words ‘arising out of’ connote a causal connection, whereas ‘in the course of’ refers to the time, place and circumstances of the incident causing the injury.”  Gibberd by Gibberd, 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1047 (Minn. 1988).

The employer argued at the hearing that the decision of the Minnesota Supreme Court in Dykhoff v. Xcel Energy, 840 N.W.2d 821, 73 W.C.D. 865 (Minn. 2013) is a “game changer” and creates a new standard for determining whether an injury arises out of employment.  The compensation judge accepted this argument and concluded the employee’s injury did not arise out of her employment.  This conclusion is based on a misreading of Dykhoff and we reverse the compensation judge on this issue.

The employee in Dykhoff fell on the floor of a hallway on the employer’s premises while she was there for a meeting.  Ms. Dykhoff acknowledged there was no incline where she fell, the floor was not wet, and there was no debris on the floor.  The compensation judge found the evidence failed to establish the floor was slippery and concluded the employee failed to establish a reason for her fall.  The judge denied the employee’s claim, concluding the employee had failed to establish an increased risk of injury arising out of her employment.  On appeal, this court reversed the compensation judge, relying on the balancing test set out in Bohlin v. St. Louis County, 61 W.C.D. 69 (W.C.C.A. 2000), summarily aff’d (Minn. 2001).  The supreme court reversed this decision and its progeny.

In its reversal, the court stated “[t]he phrase ‘arising out of’ means that there must be some causal connection between the injury and the employment.”  This causal connection “is supplied if the employment exposes the employee to a hazard which originates on the premises as a part of the working environment, or . . . peculiarly exposes the employee to an external hazard whereby he is subjected to a different and a greater risk than if he had been pursuing his ordinary personal affairs.”  (Emphasis added; citations omitted.)  Dykhoff at 826, 73 W.C.D. at 871.

The employer ignored the question of whether Ms. Hohlt was at an increased risk of injury from a hazard that was part of her work environment.  Instead they considered only whether the injury was the result of a special risk and asserted that an injury arises out of employment only if it is the result of a special risk.  Further, the employer maintained that special risk means unique risk, one that the employee encounters only on the job and one that the general public does not encounter.  The employer pointed out that people in Minnesota and Wisconsin routinely encounter snowy sidewalks and that the employee walks in snowy conditions in her personal life.  Accepting this argument, it follows an injury resulting from snowy conditions on the employer’s premises can never arise out of employment.

From the cases cited by the supreme court in Dykhoff and from its discussion on this point, it is clear that the special risk or special hazard analysis applies in those cases in which the employee is not on the employer’s premises when injured.  In special risk circumstances, the personal injury is not compensable unless there is an increased risk of injury which originates on the premises and is one that members of the general public would not ordinarily encounter.

The special risk analysis was applied in Nelson v. City of St. Paul, 249 Minn. 53, 81 N.W.2d 272, 19 W.C.D. 120 (1957).  In Nelson, the employee, a teacher, was on her way to work and was walking on a sidewalk adjacent to the school where she worked.  She was injured by a ball batted from the school grounds.  The court found the injury arose out of her employment, noting “the injury-producing hazard, the batting of a ball, as a part of the game activities sponsored by the school for the children on its playground, originated on the premises of the employer.  . . . Clearly, her injury arose out of the employment.”  Id. at 176, 19 at 123.  The special risk analysis was also applied in Gibberd where the employee was the victim of a random shooting on a public street some distance from the employer’s premises during a meal break.  The supreme court held the hazard encountered away from the employer’s premises had no connection with the employee’s employment.  Gibberd at 782-783, 40 W.C.D. 1050-53.

We note that the approach urged by the employer and accepted by the compensation judge would have the practical effect of eliminating many workers’ compensation claims in Minnesota.  A hotel maid injured while cleaning a hotel room would not be covered because members of the general public do cleaning and the maid cleans her own residence.  The same would hold true for landscape workers, delivery drivers, cooks, and many other occupations.  There are very few employment-related activities that are not also performed in a non-work setting.  We do not believe it was the legislature’s intent to exclude a significant number of work-related injuries from coverage under the Workers’ Compensation Act.  See Minn. Stat. § 176.001.

The special risk or special hazard analysis does not apply if an employee is on the employer’s premises when she was injured.  Her injury is compensable if the employee is exposed to an increased risk of injury as the result of her employment status.  Put another way, a personal injury is compensable if the employee encounters an increased risk of injury on the employer’s premises because she is an employee and the injury follows from that risk.  It is irrelevant if members of the general public might encounter the same risk because they were not brought to that risk by employment.  This circumstance has been labeled “increased risk” rather than “special risk.”

The increased risk analysis was applied by the supreme court in Dykhoff.  The supreme court also applied the increased risk test in Foley v. Honeywell, Inc., 488 N.W.2d 268 (Minn. 1992) on facts somewhat similar to those in this case.  In Foley, the employee drove her personal car to the Honeywell office complex and parked her car in a Honeywell parking ramp, one that was used by Honeywell employees, visitors, and the public.  After signing out, while walking to her car, Ms. Foley was assaulted and killed in the ramp.  The respondents argued the injury did not arise out of employment because the risk to the employee was no different than the risk to members of the public who might use the ramp.  The court disagreed stating, “However, Mary Foley was not a member of the general public using the lot, and her presence at the facility, whether for personal or business reasons, was due to her employment by Honeywell.  Thus the risk to her arising from any unsafe conditions in the ramp was associated with her employment, and her injury followed ‘as a natural incident of the work.’”  Id. at 272.  The supreme court in Foley quoted from Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 598-599, 297 N.W. 19, 21, 11 W.C.D. 463, 466 (1941) where the court held, “[T]he employment may not be the proximate cause.  But it may be nonetheless so much source of the event that the latter in a very real and decisive sense arises out of employment.”

The employer also argued that the employee was not on the employer’s premises when injured but was instead on a public sidewalk.  As Foley makes clear, however, the employer’s premises are not limited to the employee’s personal workstation or work area.  An injury is on the employer’s premises and arises out of employment if it occurs as the result of an increased risk of injury while the employee is going from one part of the employer’s premises to another, even if it occurs on a public street.  See, e.g., Goff v. Farmers Union Accounting Serv., Inc., 308 Minn. 440, 241 N.W.2d 315, 28 W.C.D. 372 (1976); Faust v. State, Dep’t of Revenue, 312 Minn. 438, 252 N.W.2d 855, 29 W.C.D. 451 (1977); Lienau v. Nw. Tel. Exch. Co, 151 Minn. 258, 186 N.W. 945, 1 W.C.D. 101 (1922)(elevator accident in building under construction by employer as employee while leaving work was being transported from her work location on the 8th floor, was on the employer’s premises and was compensable); see also 2 Lex K. Larson, Larson’s Worker’s Compensation Law, § 13.01[2][b] at 13-9 (Matthew Bender rev. ed. 2015) (“travel between two parts of the employer’s premises is compensable.  By establishing or sponsoring a parking lot not contiguous to the working premises, the employer has created the necessity for encountering the hazards lying between these two portions of the premises.  No such considerations apply to a trip to some bus stop or . . . to some parking location on a public street over which the employer has no conceivable control.”)

In the present case, the employee worked on the Twin Cities campus of the University of Minnesota and remained on those premises on her way to the employer’s parking ramp.  Her presence on the employer’s premises at 10:30 p.m. on December 30, 2013, was not due to her membership in the general public but was because of her employment by the university.^[2]

Based upon our review of Dykhoff and related case law, we conclude that the employee’s injury on December 30, 2013, arose out of her employment.  The compensation judge’s decision on this issue is reversed.

An employee is in the course of employment while providing services to the employer and also for “a reasonable period beyond actual working hours if an employee is engaging in activities reasonably incidental to employment.”  Starrett v. Pier Foundry, 488 N.W.2d 273, 274, 47 W.C.D. 176, 177 (Minn. 1992).  Activities incidental to employment include going into work or leaving from work while still on or adjacent to the employer’s premises.  Id. (employee injured in fall in employer’s parking lot on his way in to start work was in the course of employment and his injury was compensable); Foley at 272; Goff, at 317, 28 W.C.D. at 374-75; Johannsen v. Acton Constr. Co., 264 Minn. 541, 119 N.W.2d 826, 829-30, 22 W.C.D. 400, 406-07 (1963); Nelson, at 276, 19 W.C.D. at 123-24; Olson v. Trinity Lodge No. 282, 226 Minn. 141, 32 N.W.2d 255, 257-58, 15 W.C.D. 251, 256 (1948); Lienau, at 946, 1 W.C.D. at 103.  Activities incidental to employment may arise during periods in which the employee is not actually working, such as during a meal break.  See, e.g., Gibberd, at 781-82, 40 W.C.D. at 1050-51; Faust, at 856, 29 W.C.D. at 452.

We have recognized limitations inherent in the phrase “reasonably incidental” in this court’s decisions.  E.g., Cummings v. Kelly Servs., 73 W.C.D. 415 (W.C.C.A. 2012); Maker v. Kelly Law Registry, 66 W.C.D. 239 (W.C.C.A. 2006).  In these cases, the employee had either not yet reached the employer’s premises on her way to work or had left and was no longer on the employer’s premises on her way home.  In a similar vein, an employee’s injury in the employer’s parking lot was found not compensable when the employee delayed her departure from the premises to socialize.  Johnson v. Ricci’s of Hugo, No. WC06-146 (W.C.C.A. Sept. 15, 2005).  The decision in Satack v. State, Department of Public Safety, 275 N.W.2d 556, 31 W.C.D. 260 (Minn. 1978) fits into this category as well.  Although the court there discussed Goff and Faust, the key factor in the court’s decision was that the employee had been dropped off at a public street intersection near her place of employment before she started work for the day.  Essentially, these are injuries which occurred while commuting and commuting injuries are not covered by the workers compensation statute.  Swanson by Swanson v. Fairway Foods, 439 N.W.2d 722, 41 W.C.D. 1010 (Minn. 1989).

The undisputed facts here support a determination that the employee was in the course of her employment when injured.  Ms. Hohlt was on the premises of the employer when she was injured.  She had punched out just minutes before her injury and was walking a short distance on the most direct route to a parking ramp owned and operated by her employer.  We conclude the compensation judge was correct in finding that Ms. Hohlt was in the course of her employment when injured and his determination on this point is affirmed.

I concur with the analyses and conclusions reached by the majority, but offer an alternative analysis.

The Workers’ Compensation Act provides that “liability of an employer prescribed by this chapter is exclusive and in the place of any other liability to such employee, personal representative, surviving spouse, parent, any child, dependent, next of kin, or other person entitled to recover damages on account of such injury or death.”^[3]  The central principle of the Minnesota Workers’ Compensation Act is to provide an exclusive remedy to injured employees at a reasonable cost to employers through a no fault system.^[4]  This principle is based upon the mutual renunciation of general tort claims and common law rights and defenses by employers and employees alike.^[5]  Although there are exceptions to the workers’ compensation exclusive remedy provision, Minnesota courts have viewed exceptions to the exclusive remedy provision as limited in scope because they contravene the basic principles of workers compensation law.^[6]

To be compensable under the Workers’ Compensation Act, an injury must “arise out of” and “in the course of” employment.  “The phrase ‘arising out of’ the employment is expressive of the requirement that there must be a causal connection between the conditions which the employer puts about the employee and the employee’s resulting injury.  The requisite causal connection - - which need not embrace direct and proximate causation as for a tort - - exists if the employment, by reason of its nature, obligations or incidents may reasonably be found to be the source of the injury-producing hazard.”^[7]  The phrase “arising out of” “expresses a factor of source or contribution rather than cause in the sense of being proximate or direct.  . . . [I]t is enough that the injury follows ‘as a natural incident of the work * * * as a result of the exposure occasioned by the nature of the employment.’”^[8]  The test is whether the employment increased the risk of injury, regardless of whether it is unique to the job or whether it is a risk to members of the general public.

An assault by a random assailant in a parking facility is not generally a special hazard unique to employment, yet in Foley v. Honeywell,^[9] the Minnesota Supreme Court held the assault and killing of an employee in such a situation arose out of the employment.  The supreme court rejected the tort claims of the respondent trustees for the heirs of the employee who argued that the injury did not arise out of the employment because the risk to her as an employee using the parking ramp was no different than therisk to other persons, such as visitors and members of the public, who also used the ramp.  In finding for appellant Honeywell, Inc., the court noted the decedent was not a member of the general public using the ramp and “her presence at the facility . . . was due to her employment by Honeywell.  Thus, the risk to her arising from any unsafe conditions in the ramp was associated with her employment and her injury followed ‘as a natural incident of the work.’”^[10]  The Minnesota Supreme Court concluded in Foley that the test for “arising out of” was met on these facts.  If that principle of law is true in Foley, then it is equally true in the present case.

Like Mary Foley, on December 30, 2013, Ms. Hohlt was not a member of the general public using the sidewalk.  Her presence on the University premises was due to her employment by the University of Minnesota.^[11]  Like Foley, Ms. Hohlt’s employment exposed her to unsafe sidewalk conditions on the University premises and her injury followed as a natural incident of her work.  The facts here are largely undisputed and establish a logical causal connection between the employment and the injury.  Thus, the requirement of “arising out of” is met on these facts.

I additionally note the supreme court has defined employer premises to include employer parking lots and parking ramps “even those used by both employees and the public.”^[12]  The test is not whether the general public is exposed to the risk but whether the employee was exposed to the risk because of her employment.  This is consistent with basic workers’ compensation principles.  The public can sue in general tort liability.  The employee cannot, but is limited to remuneration under the workers’ compensation statute.

The compensation judge construed the doctrine of increased risk to require that the injury occur as a result of a hazard unique to the job and beyond a similar hazard faced by the general public.^[13]  This restricts the compensability of a work injury by imposing a legal principle that imports a system of direct, proximate causation more appropriate for tort litigation in contravention of the language of the exclusivity provision of the statute.^[14]

The result reached by the compensation judge would necessarily place the employee’s cause of action outside the Workers’ Compensation Act.  This opens the door to potential tort liability by the employer.^[15]  The result contravenes the overarching principle of workers’ compensation covering injuries arising from risks associated with employment.  This subverts the purpose of the statute which is to provide an exclusive remedy to injured employees at a reasonable cost to employers through a no fault system.